Misioka v State [2008] FJSC 54; CAV0012.2007 (25 February 2008)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV 0012 OF 2007
(Fiji Court of Criminal Appeal AAU 0052 of 2006S)

BETWEEN:

ALIFERETI MISIOKA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Robert French, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Thursday, 21^st February 2008, Suva

Counsel: Petitioner in person
A Prasad for the Respondent

Date of Judgment: Monday, 25^th February 2008, Suva

JUDGMENT OF THE COURT

1. At the conclusion of the hearing the Court announced that this petition would be dismissed and that reasons would be given in writing in due course. Those reasons are now given.

2. This application for special leave arose out of the imposition by a magistrate of a six month term of imprisonment, consecutive upon other sentences being served, for escaping from lawful custody. On 12 March 2006 the petitioner, together with two other prisoners, escaped from Naboro Prison. They were all recaptured the following day and charged with that offence.

3. The matter was first listed in the Suva Magistrates Court on 15 March 2006. The petitioner pleaded guilty, and was duly sentenced.

4. The background facts can be briefly stated. On 12 March 2006 the petitioner, and his co-offenders, were serving prisoners at Naboro Prison (Minimum Security). As the prisoners were being locked in a dormitory, the prison officer discovered that several were missing. The matter was reported to the police and a search conducted. All three were arrested the following day.

5. The petitioner admitted these facts. He had a long list of prior convictions. He explained that he had escaped only to see his father, and asked for leniency.

6. Some weeks later, on 19 April 2006, the petitioner and his two fellow escapees were all charged with prison offences arising out of the same escape. In the petitioner's case, the charge, "loss of government property", was laid pursuant to reg 123(11) of the Prisons Regulations. The items alleged to have been lost were identified in the Charge Sheet for the petitioner as "1 blanket, 1 towel, 1 cup and 1 razor". The petitioner pleaded not guilty before the Prisons Tribunal, but was convicted and sentenced to ten days loss of remission. He did not, as he might have done, request a review of that punishment. Section 86 of the Prisons Act makes provision made for such a review.

7. The petitioner, together with one other of his co-offenders, then appealed to the High Court. The appeal was heard by Shameem J who identified their main contention as follows:

"... the appellants have been punished for the offence by the Prisons Tribunal and... the six-month term imposed by the courts is in effect, double punishment."

8. Both appeals were dismissed. Shameem J noted that the magistrate had not been told of any disciplinary measures taken by the prison. That was probably because such disciplinary action had not been instituted when the offenders were sentenced, just two days after their recapture. She went on to say that it was likely that the Prisons Tribunal had taken into account the six month terms imposed by the magistrates when the disciplinary measures were later taken because loss of ten days remission was extremely lenient.

9. Subsequently, the petitioner was given leave to appeal to the Court of Appeal on a point of law, namely whether he had been punished twice for the same offence. In that regard, counsel for the respondent very properly drew the Court's attention to s28 (l) (k) of the Fiji Constitution. That section provides:

"28. - Every person charged with an offence has the right....

(k) not to be tried again for an offence of which he or she has previously been convicted or acquitted.”

10. Counsel for the respondent submitted, however, that there was no question of double punishment in this case. That was because the offence of escaping from lawful custody was a criminal offence, while the loss of government property was a mere disciplinary matter. The elements of each were entirely separate and distinct.

11. The Court of Appeal, in its reasons for judgment, observed that the petitioner's appeal had been heard on the very day that judgement in a case raising similar issued had been delivered. In Joeli Tawatatau v The State Cr App No. AAU002 of 2007, the appellant had been charged with escape from lawful custody, in breach of reg. 123(3) of the Prisons Regulations. He was sentenced by the Prisons Tribunal to one month's loss of remission. Subsequently, however, he was charged in the Magistrates Court with the very same matter, namely escape from lawful custody. That charge was laid pursuant to s138 of the Penal Code. He was convicted and sentenced in relation to that offence to six months' imprisonment.

12. The Court of Appeal concluded in Tawatatau v The State that the appellant had been subjected to double punishment, contrary to s28 of the Penal Code. The Court found that the elements of escaping from lawful custody, whether charged as a disciplinary matter under reg 123(3) of the Prisons Regulations, or as a criminal offence under s138 of the Penal Code were, for all practical purposes, identical.

13. The Court in Tawatatau v The State went on to say that it would be equally wrong to deal with an escape from lawful custody in the Magistrates Court, and then follow up with disciplinary measures in relation to that same offence by the Prisons Tribunal. Their Lordships' comments were plainly concerned with the question whether a prisoner in such circumstances was being punished twice for the same offence. There may be a constitutional question here for s28(1)(k) provides that every person charged with an offence has the right:

"not to be tried again for an office for which he or she has been previously been convicted or acquitted"

14. The Constitution in s28(3) draws a distinction, in the case of members of a disciplined Force, between punishment imposed on such members under the criminal law and under a disciplinary law affecting the Force. Whether such a distinction is relevant to the case of reduction of remissions for a prisoner who has committed a criminal offence which also constitutes a breach of the Prisons Regulations need not be decided here. That distinction had no bearing upon the situation which arose in the instant case because the alleged breach of the Prisons Regulations was not the escape from lawful custody.

15. The Court of Appeal then went on to deal with what their Lordships described as an "unsatisfactory aspect" of the present case. The matter had not been addressed in argument, but required attention.

16. As previously indicated, the petitioner had been dealt with before the Prisons Tribunal for an offence under reg 123(11). That regulation relevantly provides:

"123. Any prisoner who commits any of the following offences shall be guilty of a prison offence for the purposes of section 82 of the Act:...

(11) omits or refuses to wear the clothing issued to him or exchanges, loses, discards, damages, alters or defaces any part of it;... "

17. Although this offence is plainly intended to deal with misuse or loss of "clothing" issued to prisoners, the items actually alleged to have been lost in this case did not, as has been seen, meet that description.

18. Their Lordships noted that the petitioner could have instituted review proceedings arising out of the Prisons Tribunal determination. No such application had been made. It may well have been that he was unaware that the disciplinary proceedings brought against him were entirely misconceived. In any event, the Court of Appeal said that it would not countenance what it described as “an obvious injustice”. It therefore “quashed” the Prisons Tribunal decision, and ordered reinstatement of the ten day remission period forfeited in respect of the petitioner and his co-appellant.

19. The petitioner then sought further redress before this Court. He submitted that the Court of Appeal had erred in failing to direct that the term of six months' imprisonment be served wholly concurrently with the other sentences that he was then undergoing.

20. In support of that submission, the petitioner drew attention to the observations of Shameem J regarding the circumstances surrounding this offence. She accepted that this particular prison escape was not "the most serious type of breakout" and that it involved little or no planning, and no damage to property.

21. It seems that the petitioner's point regarding concurrency for this offence was not raised before the Court of Appeal. It was certainly not considered by that Court. That of itself is not fatal to an application for special leave in this Court: see generally Solinakoroi v The State, Supreme Court 8 June 2006. Nonetheless, the failure to raise a point below is plainly relevant when considering whether the requirements of s7 (2) of the Supreme Court Act have been met.

22. There is no basis for the adoption of any sentencing principle to the effect that a sentence for escaping from lawful custody should ordinarily be made concurrent with the sentences already being served. Quite the contrary. Such an approach would be misconceived, and wrong. As Shameem J stated, when she dismissed the petitioner's appeal:

"... if sentences for escaping are to have any deterrent effect at all, they must be served consecutive to existing terms, so that the result is too lengthen the incarceration period. "

23. There was equally no error on the part of the magistrate in fixing a sentence of six months' imprisonment for this offence of escaping from lawful custody. The petitioner pointed to other cases where lesser sentences had been imposed. That of itself does not demonstrate any injustice, or any reason for this Court to intervene.

24. It was for these reasons that the application for special leave was refused.

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
The Petitioner in person
Office of the Director of Public Prosecutions, Suva for the Respondent